Wednesday, December 31, 2014

2014 in review: The presumptively innocent strike back

We are stranded in an era where hostility to due process when it comes to men accused of rape masquerades as women's rights. As long-time readers of this blog know, it is the rush to judgment, the assumption that an accusation is tantamount to a conviction, that underlies the injustices we write about. The rhetoric employed to justify the rush to judgment is typically a chilling echo of the lynch mobs gathered at the hanging trees of the Old South, animated by a blatant disregard of the due process rights of the presumptively innocent.

2014 was a watershed year. It was the year it finally became apparent to prominent mainstream writers and law professors that gender extremists have gone too far pushing their agendas on sexual assault. There is finally a mainstream backlash against rape culture hysteria. The rape culturalists are still winning, but for the first time, they have prominent opposition.

Rape Culture Hysteria

Before we get to the backlash, it is important to note that the year witnessed an explosion of jaw-dropping "rape culture" hysteria:

Ms. Magazine quoted Caroline Heldman, a professor at Occidental College, on suits filed by men for alleged violations of their due process rights in connection with sexual assault claims: "These lawsuits are an incredible display of entitlement, the same entitlement that drove them to rape."

Sen. Claire McCaskill circulated an extensive survey about sexual assault to 350 college and university presidents. The survey classified persons who make accusations of sexual misconduct as “victims,” and in one place called persons merely accused of sexual misconduct “offenders.” Then on page 14, it contained this query: "Below is a list of policies and procedures that may discourage victims from disclosing and reporting assaults at some schools . . . . 1. Disclosure of offender’s rights in the adjudication process . . . ." The implication: it is somehow improper to insure that students accused of serious sexual offenses are aware of their rights.

A jury acquitted former Dartmouth student Parker Gilbert of raping a female student at the school in a "he said/she said" dispute. A juror told a reporter “(The woman’s) story of how the night played out, the evidence wasn’t there to support that." And: “There is tons and tons of evidence that just doesn’t add up.” But WISE, an organization that seeks to empower victims of domestic and sexual violence, issued a formal statement: "Today’s decision in the Dartmouth rape trial of Parker Gilbert is devastating and there is no doubt that it sends a terrible message to survivors of sexual assault."

Duke University Dean of Students Sue Wasiolek was asked what would happen if two students got drunk to the point of incapacity, and then had sex. "Assuming it is a male and female, it is the responsibility in the case of the male to gain consent before proceeding with sex," said Wasiolek.

Jessica Valenti mocked the efforts of three mothers who started Families Advocating for Campus Equality (FACE) that seeks to raise awareness about the injustices faced by presumptively innocent college students accused of sexual misconduct. Each of the three founders of FACE has been touched directly by campus rape injustice: their sons were ensnared by it. Valenti wrote: "Alternative name for this group: Not My Nigel." Of course, "Not My Nigel" is radical feminist shorthand to suggest that women who defend their male loved ones accused of rape or similar acts are defending rapists.

Ezra Klein evinced satisfaction that possibly innocent young men will be expelled for rapes they didn't commit: "Critics worry that colleges will fill with cases in which campus boards convict young men (and, occasionally, young women) of sexual assault for genuinely ambiguous situations. Sadly, that’s necessary for the law’s success. It’s those cases — particularly the ones that feel genuinely unclear and maybe even unfair, the ones that become lore in frats and cautionary tales that fathers e-mail to their sons — that will convince men that they better Be Pretty D–n Sure."

Elisabeth Dee, Stanford class of 2016, one of the organizers of the “Carry that Weight” demonstration where students were urged to carry a pillow or mattress around for a day to symbolize the burden placed upon survivors of sexual assault, called on the school to reduce the burden of proof required to find someone guilty of sexual assault, which is already the lowest legally permissible, "preponderance of the evidence." Dee said that Stanford, should not be focusing on "defending the perpetrator, because essentially burden of proof is a defense of the perpetrator.”

Laura Dunn, executive director of SurvJustice, on why some colleges have pushed back against lowering the standard of proof for sexual assault cases to make it easier to hold young men accused of sexual assault: "To put it bluntly, I think it's arrogance and ingrained male privilege . . . ."

"Offensive" posters at hospitals and colleges that carry the slogan "one in three reported rapes happens when the victim has been drinking" were condemned for victim blaming.

Julia Horowitz, a journalist at University of Virginia’s school newspaper, wrote that "to let fact checking define the [sexual assault] narrative would be a huge mistake.”

Zerlina Maxwell wrote this: “Ultimately, the costs of wrongly disbelieving a survivor far outweigh the costs of calling someone a rapist.”

Jessica Valenti debated Wendy McElroy at Brown University. A live-blog reveals that a questioner suggested that the conversation had become unnecessarily adversarial, with some people supporting the accuser and others supporting the accused. Valenti responded: “. . . in the society we live in now, we need to side with the survivors. That might not be a fair and equal thing, but that’s how I think it has to be."

At the University of Virginia, the gender zealots want "private" rape trials despite the fact that, as Prof. KC Johnson said, "secret trials are anathema to the U.S. legal tradition" and "that open trials afford a critical protection to the wrongly accused."

An anonymous Tumblr blog called the "Hyde Park List" listed the names of six male students and alumni who allegedly have perpetrated "gender-based violence" against other students. The blog was followed by fliers with the names taped around campus.

An ESPN analyst said men need to be reprogrammed. CBS sports anchor James Brown used the Rice incident to boldly -- and bizarrely -- proclaim that when men say "you throw the ball like a girl," it leads to domestic violence against women.

The rape culturalists got a big victory with California's "affirmative consent" law that governs sexual assault on college campuses. Under the law, the accused must show that he took "reasonable steps, in the circumstances known to the accused at the time, to ascertain whether the complainant affirmatively consented." The law also requires "affirmative" consent at each step of a sexual encounter on its college campuses. The co-author of the bill in the state assembly, Bonnie Lowenthal, D-Long Beach, was asked how an innocent person is supposed to prove consent. She said: “Your guess is as good as mine."

One of the worst examples of rape culture hysteria in recent years was the Rolling Stone debacle. Sabrina Rubin Erdely, recounting an alleged gang rape of "Jackie" at a University of Virginia frat house, wrote this in Rolling Stone Magazine: "'Grab its motherfucking leg,' she heard a voice say. And that's when Jackie knew she was going to be raped. She remembers every moment of the next three hours of agony, during which, she says, seven men took turns raping her, while two more – her date, Drew, and another man – gave instruction and encouragement." And: "For men, skepticism is a form of self-protection . . . . For much of their lives, they've looked forward to the hedonistic fun of college, bearing every expectation of booze and no-strings sex. A rape heralds the uncomfortable idea that all that harmless mayhem may not be so harmless after all. Easier, then, to assume the girl is lying, even though studies indicate that false rape reports account for, at most, eight percent of reports." The Managing Editor of Rolling Stone later apologized for the story, noting with almost other-worldly understatement: ". . . there now appear to be discrepancies in Jackie's account."

The Backlash

The Rolling Stone debacle might have been a tipping point, because suddenly, the mainstream media discovered that an important college "rape" story was filled with holes -- this, combined with other blows to the rape culture meme, led more and more people to realize that the Rolling Stone debacle is symptomatic of a culture that has allowed gender extremists to dominate the public discourse on sexual assault.

Early in the year, much to the chagrin of feminist pundits, RAINN, the nation's leading anti-rape organization, debunked the "rape culture" meme: "Rape is caused not by cultural factors but by the conscious decisions, of a small percentage of the community, to commit a violent crime." This is what we've been preaching here for years. RAINN decried the "inclination to focus on particular . . . traits that are common in many millions of law-abiding Americans (e.g., 'masculinity'), rather than on the subpopulation at fault: those who choose to commit rape." It cites the work of Dr. David Lisak, just as this blog has done, in explaining that the notion of "rape culture" is inaccurate.

More damning, the oft-repeated claim that 1-in-5 college women are sexually assaulted came under fierce attack, but not until the end of the year. Earlier in the year, George Will used the Obama administration's own stats to prove the one in five claim was too high, and he got ripped apart for being a rape apologist (by the way, an economist also proved it's way too high based on the government's own underreporting statistics). Will was a pariah, and it looked like it might be the beginning of the end of his long career.

But as the year went on, the 1-in-5 started to dissolve. The lead author of the principal one-in-five study, Christopher Krebs, told Emily Yoffe that it simply is not a representative statistic that can be relied upon when discussing American college women in general. The Washington Post concluded that the stat couldn't be relied on as representative. Then, at the end of the year, the Washington Post said it is "misleading to suggest that [the one in five stat] is representative of the experience of all college women." The New York Times says the stat is "flawed." And even Scott Berkowitz, head of the national advocacy group RAINN, says the 1 in 5 stat "is probably too high."

There was a mushrooming of litigation by college men accused of sex offenses -- respected lawyers were entering their appearances on behalf of young men who'd been expelled or suspended from colleges, and in suit after suit, the lawyers claimed that the young men were discriminated against because of their gender.

It was also revealed that colleges pay a lot of money to settle suits filed by men who claim they were wrongly punished for sex offenses.

The most astounding blow to rape culture excesses came on October 15, 2014, when a letter was published in the Boston Globe signed by 28 Harvard law professors -- mostly liberals -- that voiced very strong objections to the school's one-sided, feminist-inspired sexual misconduct policies. This letter was arguably the single most important statement to date on American colleges' hostility to due process when it comes to men accused of sexual misconduct. Prof. Alan Dershowitz, a titan of criminal jurisprudence, told Time Magazine "Harvard's policy was written by people who think sexual assault is so heinous a crime that even innocence is not a defense." Then, he made clear his opposition to Harvard's sexual assault policies was really "a criticism of the federal government. It’s a criticism of the Obama administration.” He added: “These rules are written to preclude a defense” for accused students.

And suddenly, even The New York Times discovered there's another side to the story. Not to be outdone by Harvard, a Yale law professor chimed in, again in the New York Times. (So, of course, Jessica Valenti suggested the Yale law professor is a rape apologist. Robby Soave responded: "People who oppose the death penalty do not sympathize with murderers. Critics of U.S. drone warfare policy are not on the side of the terrorists. Most self-identifying liberals understand this. So why do feminist liberals smear every person who dissents from their extreme, unhelpful, and legally dubious positions on preventing rape as a rape apologist?" Soave said that Valenti's piece is but "the most recent and infuriating example of this contemptible, authoritarian demonization campaign." Soave offered Valenti some sound advise: "How about this, Valenti: If you can't talk about rape without attempting to shut down the discussion about how to actually prevent rape, maybe you are the one who shouldn't talk about it.")

Just as astounding, Brett Sokolow, head of the National Center for Higher Education Risk Management (NCHERM), chimed in. Sokolow has done more to shape the sexual assault landscape on American college campuses than any person outside the Department of Education. Since the year 2000, NCHERM has had in excess of 3,000 college clients. No group has more effectively fought for the rights of sexual assault victims on college campuses. Yet earlier this year, even Sokolow had seen enough, and he wrote a landmark letter to his clients called "An Open Letter to Higher Education About Sexual Violence." It says what this blog has been trying to say for years, only better, and in more forceful terms. He painted a chilling picture about the hostility on American college campuses to the rights of men accused of sexual violence. The letter goes into detail about recent cases NCHERM has investigated that illustrate, beyond any question, what this blog has been saying for years: in the "hook up" culture, the evidence is often too murky to warrant charging and punishing the male accused of sexual misconduct, but that's exactly what too many schools are doing. Among many other things, the letter states that "in a lot of these cases, the campus is holding the male accountable in spite of the evidence – or the lack thereof – because they think they are supposed to, and that doing so is what OCR wants." And that in "case-after-case . . . sincere victims believe something has happened to them that evidence shows absolutely did not . . .." And: "We see complainants who genuinely believe they have been assaulted, despite overwhelming proof that it did not happen."

That's not all, in a separate letter, Mr. Sokolow cautioned colleges that when a man and a woman engage in mutually tipsy sex, the school can't single out the guy for discipline. This was a letter of immense importance that was ignored in the feminist community because it took a position some prominent feminist pundits had recently attacked when the Wall Street Journal said it.

The courts also rolled back some rape hysteria excesses. The Washington Supreme Court reversed some very bad law that put the burden of proving consent in rape cases on the accused.

The year saw the usual false rape claims made for daffy reasons, like the law school graduate who claimed her boyfriend raped her 11 times so she had an excuse for failing her bar exams.

For their part, feminists also took up critical issues that oppressed women in 2014, like the need to avoid using the word "seminal," which it is "blatantly sexist" and "perpetuate[s] inequalities or marginalization." And they protested men taking up too much room on subways. And, of course, we can't forget the statue of a sleepwalking man at Wellesley College, which they said is "a source of apprehension, fear, and triggering thoughts regarding sexual assault." That pretty much says it all.